Divorce Law Common Misconceptions

Some clients (not ours, of course–ours are perfect) occasionally take extreme positions in the way they view the world. They want everything to be black or white. Shades of gray are uncomfortable, especially in areas into which they have never tread. They have been hurt and deserve to be made whole again. And the “whole making” should begin immediately.

So, let’s test each of the below premises for logical and moral consistency in the extreme case. If the argument works in those situations, then it can work in the typical setting, and a “hard and fast” rule can be established.

If it doesn’t work, then the “rule” is anything but. If other factors must be taken into consideration, then we have shades of gray. In this situation you will need (gasp) divorce lawyers and judges to help sort things out.

Why can’t there be hard and fast rules such as the following:

My husband left me. I get everything.

My wife committed adultery. I get everything, including the children.

My wife has denied me sexual intercourse for years. That’s the same as desertion, and I get everything.

I paid for the car my spouse is driving (here are the canceled checks with my signatures on them)–it’s therefore mine.

I have been married for at least 10 years to my military spouse, and we are divorcing–I automatically get half of the retirement pay.

Each of the above rules, as clean cut as they are, are each not true. As nice as rules are, absolute rules sometimes can lead to terribly unfair results in different circumstances. In order to give a resolution to a certain set of facts with no qualifications, the premise has to stand up to logical analysis in extreme situations.

Well, now, let’s see. To test the first example, let’s say you berated your spouse mercilessly and continuously for months on end, causing him/her to sink into a depression that only leaving the tormentor (you) could relieve. Should the one who leaves under those circumstances lose everything (or anything)? If such a result were the case, then if you were my client, it would be my obligation to advise you to torment and berate your spouse mercilessly and relentlessly until he/she left. And imagine what your spouses attorney would be advising! Would such advice really make sense? Of course not. Therefore, the statement cannot be, and is not, the law. The court has got to look at the reasons for the spouse’s leaving. Generally speaking, upon analysis of the facts the court will find that both parties have their strong and weak points. As one judge put it, “From my perspective, each party is usually about 50% at fault. Even in unusual situations, its rarely more than 60/40.” The only exception is where there has been a long history of spousal abuse.

Okay, take away any overt cruelty on your part. Let’s just make you an incredibly boring person. You never want to go out. Before you were married you were lots of fun, but now that you have found your mate, there is no reason to do anything social. After all you are not looking for a mate any longer. A beer (or glass of wine), and a bag of popcorn (or some cheese) is all the Saturday night festivities you need. Your spouse thought the exciting nightlife that preceding the wedding would continue afterwards, but you made no such promises. Your spouse also thought that children were one of the objectives of the coveture, but you made no such promises of that (or even sex) either. A dog is all the responsibility you want. You’ve been married 10 years, and together have accumulated $1,000,000 in assets (you didn’t do anything to spend your money on, so it grew quickly) . You both make the same amount of money, so you both contributed to the pot. Your spouse says “I’ve only got one life to live, and I want the possibility of having my own children. I’m out of here.” Should it cost a half-mil to leave?

Let’s test this one by putting the shoe on the other foot. Let’s say you were a partner in a 20 year loveless marriage. You worked hard inside (raising kids) and/or worked outside of the home (at a lucrative profession). Together you and your spouse accumulated substantial wealth together (let’s say $10 million). However, in all that time you never received a kind touch or word of appreciation from your partner. At work, the library or at church, you meet a Prince(ss) Charming who momentarily sweeps you off your feet. In a moment of weakness and passion, you “slip” and violate your vows. Should that violation cost you $5 million? (It may cost you a spot in heaven, but the judge will not play God. The judge –little “j”–will see the relationship in the long view for what it is or has been, and will distribute the marital property accordingly. The judge will not assess a fine or extract a monetary penalty for the act of adultery. Indeed, a careful reading of the statute specifically forbids this type of punishment.) (Caveat: Please do not read this paragraph as some sort of “permission” or “license” to commit adultery. Adultery is still a high offense to our society’s moral fiber, and we strongly discourage the act as one that needlessly destroys families and children. We state the facts of this and other examples only for a context to discuss their legal consequences.)

If you beat or berate her in to morning, don’t expect to go to go to bed with her that night (or the next night). While this is more “family counselor” advice, it is interesting how often this comes up and in how many different contexts. It is rarely possible for the judge to discern which came first, the proverbial chicken or the egg. (“I have a headache from all the housework I have been doing that he never helps me with.” “I never want to help because I know it won’t make any difference. Besides I earn more money.”) We don’t know the answer. The judge certainly won’t know the answer. The parties really do know the answer, but rarely want to acknowledge it.

No need to repeat the above scenarios. It should be clear that a past act of adultery will not forfeit one’s right to seek and be awarded custody of children. Children should be with the better parent, with each parent’s warts, flaws and good points all thrown into the mix. Ongoing acts of adultery in the children’s knowing presence really tick judges off, tho’.

Let’s make the object more valuable that a car. Let’s make it a house worth $500,000 and a stock and bond portfolio worth $1,000,000. Over the course of your 20 year marriage, you worked outside of the home, and your spouse stayed home to raise your 4 smart and lovely children, all of whom were well-behaved, well-rounded, and highly admired young people because of the daily fine care and attention provided by the stay at home spouse. You were promoted through the ranks of your employment not only because of your hard work, but because your spouse expertly handled all of the family emergencies, leaving you the ability to concentrate on the job. All of the money from your job went into your personal checking account, and you handled all of all of the financial business of the household. You penned the checks for all the bills. You made all of the investment decisions, which panned out pretty well. You had (and are still having) an affair with your personal assistant spanning the last five years of your marriage. Your spouse learned of it early on, and confronted you with it. You said you would stop, but didn’t. Your spouse but did not want the children to see their parents divorce, and declined to leave you at that time. When the youngest one left the home to enroll in an Ivy League college, a divorce ensues. Should the at-home spouse will lose everything (one half of which is $750,000) because you can prove you “paid for it”? (In another typical situation, one spouse pays for the car and the other the groceries. Does the one who pays for the car keep the car for the mere fact that the food was consumed and the car wasn’t?)

This one is easy to play our game with. Let’s picture the situation where the military member chose to stay in for 30 years. Coincidentally, he was married to a different spouse for each decade of his career. Three wives, 10 years each. Under the theory proposed, how much would the first wife get? Half. The second? Half. And the third? Um, half?? And how much would the military member get? It doesn’t work, does it?

Okay, there is a black and white answer here. The word “half” that you hear people talking about is “half of the marital share” of the retirement pay, not “half of the whole” retirement pay. The first wife would get one-half of 10/30ths (10 years of marriage divided by 30 years of total service) as her share of the retirement pay–half of the amount that was earned during the marriage. The second and third wives would each get the same amount. Collectively, the 3 wives would receive one-half of the whole retirement pay.

The military member receives the other half. That sounds fair, doesn’t it?

One more thing: the “10 year rule” has no bearing whatsoever on this subject. A spouse is entitled to claim a piece of the marital portion of any property regardless of the length of the marriage. A spouse married for 9 years or 5 years can claim a proportional share of the retirement (50% of 9/30ths, or 50% of 5/30ths). There is such a thing as “too short a period of time to have a real claim in retirement,” but the judge (or the parties) will have to decide that on a case by case basis.

There is a 10 year rule, mind you. It pertains to whether the federal government will be willing to write the non-military spouse a separate check. If the marriage exceeds 10 years, the spouse can ask the government to cut her a check for her share. Less than 10 years, no luck.

One last point: whether the marriage is 5, 10, 20 or 30 years, the entitlement to a share of the spouse’s retirement pay is not automatic, at least not in Virginia. All that Congress did in the legislation which it enacted back in 1982 (allowing division of military retirement pay) was to give the various state courts the authority (not the obligation) to treat retirement pay as an item of property, to be divided just like any other piece of property (like a car, or a television set). The state court were obliged only to follow their normal property division laws, and in Virginia, that would be equitable distribution.

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